International Criminal Court

HC Deb 20 July 1998 vol 316 cc803-13 4.37 pm

The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook)

With permission, Mr. Deputy Speaker, I wish to make a statement.

It has been the Government's policy to back the creation of an effective International Criminal Court. I am pleased to report to the House that in Rome on Friday, Britain was part of the overwhelming majority that agreed to set up such a court. It has been a paradox of our century that those who murder one person are more likely to be brought to justice than those who plot genocide against millions. The International Criminal Court will put on notice the Pol Pots and Saddam Husseins of the future that they may be held to account personally for their crimes against humanity. It will also offer justice to the victims who have no means at present of bringing their suffering before any court.

I ask the House to record its appreciation of the hard work by the British team through five weeks of difficult and intensive negotiations. Britain's firm support for the principle of an International Criminal Court and the leading role that was played by our delegation in brokering consensus contributed to the successful outcome of the Rome conference.

The result is a strong court with wide powers. It will have the power to try cases of genocide, war crimes and crimes against humanity, including crimes of sexual violence, such as the use of mass rape as an instrument of ethnic cleansing, as was practised in Bosnia. The conscription of children under 15 into military service will also be an offence liable to prosecution before the court.

The British delegation played a key part in securing a definition of war crimes that embraced internal conflicts, not only wars between states. That is of great importance, as most of the violence of the past two decades has arisen from internal, not external, conflicts.

The British team also took the initiative in proposing that the court should have power to order those who are guilty to pay reparations to their victims. That is a new power, which is not available to the tribunals on the former Yugoslavia and Rwanda. It reflects the fact that those who abuse their power to commit crimes against others often also abuse their power to make themselves wealthy.

We consistently rejected attempts by other countries to give the court the power of the death penalty, and we were successful in maintaining a majority against any international body having the power to order the death penalty.

Much of the debate in the period running up to the Rome conference revolved around the independence of the prosecutor. I am pleased to report that the prosecutor will have the power to initiate investigations leading to prosecution on his or her own authority. States that are party to the treaty may also refer alleged crimes for investigation, but the prosecutor can take the initiative without waiting for such a referral.

From the start, our objective has been to secure maximum support for the International Criminal Court. To be credible, such a court must command substantial support in the international community. The final vote in support of the court—120 votes to seven—exceeded our expectations. The large number voting in favour was, in part, a reflection of the comprehensive international presence at the Rome conference, which was brought about by the financial support that Britain and others provided towards meeting the attendance costs of 50 of the smaller and poorer states.

To build that overwhelming support, it was necessary to meet the concerns of a number of countries that supported an International Criminal Court in principle, but had reservations about the proposed procedures. In particular, it was necessary to agree that countries signing up to the court should have the right to claim immunity from prosecution for war crimes for up to seven years.

That immunity is time limited; it does not extend to the other crimes in the court's remit, such as crimes against humanity, and it can, in any event, be overridden by a Security Council resolution. It is much more restricted than the initial bid by a number of countries that wanted an indefinite right to opt out from any of the crimes in the court's remit. I understand the regrets of those who would have preferred that no such concession were granted, but I firmly believe that it was right to make a limited compromise to secure wider support for the court and thereby achieve greater credibility for its authority.

I am sorry that, at the end of the Rome conference, the United States felt unable to support the compromise proposals. I understand its concerns about the security of its service men who are posted abroad, but we believe that those concerns are misplaced. Britain, too, has a large number of service men in posts abroad, and we and other major NATO allies are satisfied that the safeguards that are built in to the International Criminal Court will protect our service men against malicious or politically motivated prosecution.

In particular, it is a clearly established principle that the court will be able to prosecute only when there is no remedy in national law. We are confident that we can demonstrate that there is a remedy in British justice—and, for that matter, in United States justice—for accusations that are made against our service men in good faith. The screening of cases by the pre-trial chamber of the International Criminal Court will provide a safeguard against accusations that are brought in bad faith.

We shall continue, through close dialogue, to seek to bring our United States partners on board in support of this improvement to international justice, which has gained such overwhelming support from the rest of the international community.

Later this year, the world will celebrate the 50th anniversary of the signing of the universal declaration of human rights. There can be no more fitting way in which to mark that anniversary than for us to sign up to this agreement, which, for the first time, creates an international court to enforce the most fundamental of those rights. I hope that the support that the court will secure in the House will be as overwhelming as the support that it has already received in the international community.

Mrs. Cheryl Gillan (Chesham and Amersham)

I start by apologising for the absence of my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard), who is currently travelling back to this country.

I congratulate the Foreign Secretary on his statement. I particularly congratulate those diplomats and others who have successfully participated in the enormously complex process of establishing the permanent international court, not only in the past five weeks and in Rome, but during the ad hoc meetings and preparatory committee processes that took place under the previous Government. I also congratulate those NGOs that participated in the process, including the Red Cross, Amnesty International and the NGO Coalition for an International Criminal Court, which all made valuable contributions.

Those who commit the most serious crimes, which bring international revulsion, should have no place to hide, and the court represents a considerable step in the right direction. Despite the historic nature of the Foreign Secretary's announcement, many details remain matters of grave concern, on which I hope he will elaborate.

Does the Foreign Secretary accept that the fact that two of the five permanent members of the Security Council—the US and China—have not signed up to the court is a problem? Does he agree with the diplomats who have said that the court will not work effectively without US participation? Does he believe that that could weaken the court before it is even out of the starting blocks? What steps will he take to encourage countries such as India, Israel, the US and China to join us, and how will he bring those countries on board?

Although the court represents the right way forward, it will not come into being until the statute has been ratified by all the signatories. As that process could take many years, will the Foreign Secretary say when he proposes that the United Kingdom should ratify the statute and what steps he will take to encourage swift ratification by other signatories? What problems are created for the ratification process by the fact that the voting in the UN was by a non-recorded vote, in which countries did not have to identify themselves?

Will the right hon. Gentleman comment on the position of Israel, which, for many years, has understandably campaigned for the establishment of such a court, but which felt unable to sign up to the final proposals? Does he agree with the Israeli Government that the clause introduced by Egypt and Syria would make the Israeli settlements the subject of prosecutions? Is that assessment of the clause accurate?

The Foreign Secretary will acknowledge that the establishment of such a court is only half the battle. He has dealt with the position on the death penalty and the welcome inclusion of reparations, but will he outline what sanctions and punishments he envisages will be available to the court following a successful prosecution? More particularly, how will any sentence be enforced and who will pay for any subsequent imprisonment of a convicted person or persons?

We welcome the Foreign Secretary's assurances that British troops will not face malicious prosecutions of the kind feared by the US—indeed, that was one reason why the US refused to sign up to the court—but what guarantees can he give us that that will be the case? What makes him right and the US wrong?

Does the right hon. Gentleman accept that the court will be able to prosecute only in cases when crimes have been committed by a state that has signed the statute or when they have taken place in the territory of a signatory? Is it not the case that that leaves the door wide open to those who commit crimes in countries that have refused to accept the jurisdiction of the court?

Will the Foreign Secretary also comment on the provision that was dropped, whereby suspects who had taken refuge in a country could be extradited to face prosecution? Does that not mean that tyrants and butchers will still have access to safe havens?

We welcome the Foreign Secretary's assurances on the independence of the prosecutor, but does he agree that only judges with the highest qualifications, preferably in both criminal and international law, should be used by the court?

The court will inevitably be costly. Will the Foreign Secretary confirm that he pressed for the least expensive arrangements, consistent with the court's effective functioning, and say what provisions have been made for the associated costs?

Finally, I am sure that I speak for all parts of the House when I endorse the international decision that will ensure that no man is above the law. By creating an International Criminal Court, we hope that we can move towards a more humane and peaceful world in which there is no sanctuary for the despot, the dictator or the depraved.

Mr. Cook

I thank the hon. Lady for her congratulations. I shall of course pass on to the officials who worked so hard to secure this agreement the congratulations from the Opposition Front Bench, which are always very gratifying.

Of course, we will continue to work with the United States in particular to get it to accede to the new institution. It is early days yet in the signing process—indeed, it has been open for signature for only one day so far. I hope that the United States will, first, come to drop its opposition and, over time, recognise that it is in its interests to be part of such an overwhelming consensus in the international community.

The hon. Lady asked whether the court could work without the United States. The answer is yes, it can work. If 120 countries want to make it work, and if those 120 include three of the permanent members of the Security Council, it can work. However, everyone recognises—I am not going to deny it—that it would work much better if the United States were a supporter of the institution.

The simplest way to resolve the question of the clause proposed by Egypt, which caused Israel to withdraw its support for the court, would be for Israel to recognise that the continuing expansion of settlements in occupied territory is without legal basis and jeopardises the peace process. I very much hope that, over the years that it will take for an International Criminal Court to be brought into being, it will be possible for us to make progress with the peace process which will resolve that difficult and outstanding issue between Israel and its neighbours.

The hon. Lady also asked about costs. I can tell her that we sought a formula that provided the best possible way to distribute the burden of the costs of the court. That is why we achieved an outcome whereby the court will be part-financed by the states that accede to it and part-financed by the United Nations, especially in respect of the cases referred through the Security Council.

Of course, the court will not be cheap. The two tribunals on Rwanda and Yugoslavia have already cost $113 million in the current year, and they are relatively limited in their application. This will not be an exercise that can be achieved for a small price, but I believe that a price is worth paying to secure this important development in international justice.

Yes, we are confident that our service men will be protected against malicious prosecution. If anyone is in any doubt about whether that confidence is well placed, I should say that none of our other NATO allies took the interpretation of the United States; and, like us, many of those other NATO allies have service men in foreign posts. We are all confident that we have achieved safeguards against malicious prosecution—some of them sought by the United States itself.

The hon. Lady also raised the territorial application and jurisdiction of the court. It is indeed the case that one of the tests of whether the jurisdiction of the court would apply is whether the country that contains the territory in which the alleged crime took place consents. In practice, it is very difficult to imagine the court operating on any other basis. It is hard to see how a case could succeed without access to the scene of the crime, and the court has no powers to try people in absentia, a legal principle which most hon. Members would support. Therefore, it is difficult to see how the court could proceed against existing tyrants still in power, but there is, of course, power for the Security Council, by resolution, to refer any country or individual to the court without any consent by that country or its Government.

On the qualifications of the judges, I am pleased to report that one of the important contributions made by the British delegation was to chair the working party on those qualifications. Our team did an excellent job in achieving an outcome that requires two thirds of the bench appointed to be drawn from judges who have experience of criminal trial work. We are confident that we have made the best possible provision to make sure that the judges are experienced and of a high calibre.

I deal finally with the question of ratification. This will not be a swift or fast-track process. We are now arranging to draw up the appropriate legislation, but that legislation will be complex. It is not legislation that I would dream of asking the House to pass in a one-day sitting, as happened with the landmines treaty, because I suspect that it will contain many clauses that will give lawyers many hours of fruitful debate as it passes through the House. Therefore, it is not something which the House should imagine will be rushed through; nor will it be rushed through in many of the other countries. That is why I hope—it is our intention—that we shall be among the first 60 to ratify. If we continue to have the Opposition's support, we might be able to ratify even sooner.

Mr. Menzies Campbell (North-East Fife)

Does the Foreign Secretary agree that if we adopt too querulous a tone, we run the risk of underestimating the real achievement in the creation of the court? I share his satisfaction, especially in relation to the independence of the prosecutor, an issue on which I know that the British negotiating team, to which he has rightly referred in complimentary terms, pressed very hard in the final three or four days of negotiation. The team certainly deserves to be congratulated on that issue above all others.

I share the Foreign Secretary's disappointment with regard to the United States. I hope that there will not only be dialogue, but that he will impress on the United States the importance of a change of mind or, indeed, a change of heart.

On the question of immunity from prosecution for war crimes, which, as I understand it, runs for a period of up to seven years, am I right in saying that there will be no bar on investigation during that period, so that, on the expiry of such a period, any country that has taken advantage of the immunity may, in respect of war crimes, find that its citizens are liable to prosecution?

Mr. Cook

The hon. and learned Gentleman uses his privilege as a lawyer to ask me a legal question that I cannot answer. I shall take advice on whether the court would have a retrospective character in line with the seven-year time bar, and I shall happily write to him on that point.

It is fair to record that the United States has for many years been at the forefront of the international community in expressing concern about rogue states and crimes against humanity practised by evil tyrants such as Saddam Hussein. I hope that once the issue is fully considered and the text is studied in Washington, the United States will recognise that the agreement fits with its world view and is something which it should support, not oppose.

I agree absolutely that one of the main gains in Rome was the securing of the independence of the prosecutor, which was by no means a certainty before negotiations began. Our overall judgment is that, with the exception of the seven-year time limit, we secured all our negotiating objectives. As a result, we have a strong and effective court, with much greater support from the international community than we had anticipated. I therefore share the hon. and learned Gentleman's view that, although it is proper for the House to ask questions, we should not lose sight of the fact that the agreement is a great achievement which offers a major breakthrough in international justice.

Mr. Clive Soley (Ealing, Acton and Shepherd's Bush)

Many of my constituents will want to join in congratulating the Foreign Secretary on his achievement—not least because some of them have fled from the very regimes that we are seeking to put in the dock. Over the years, so many of us have felt that a court of that nature is vital. Perhaps he will tell the United States that those of us who are used to seeing it acting as one of the leaders on human rights and the rule of law are saddened when we see it acting as a drag anchor on the very process that we all want to encourage.

Mr. Cook

My hon. Friend makes his point with great force and great eloquence. Those of us who have met those who have fled from such evil tyrants understand two things: first, the hardship that they often have had to experience; and, secondly, the real frustration at knowing that they have no ready legal remedy. We hope that legislation for an International Criminal Court will put paid to that vacuum. I also agree with my hon. Friend that the court would be much more effective if the United States were to recognise that such a court is entirely consistent with its own policy.

Dr. Julian Lewis (New Forest, East)

May I welcome the Foreign Secretary's announcement, and pay tribute to the hon. Member for Cynon Valley (Ann Clwyd)? Although she is not in the Chamber today, she has consistently campaigned—as long as I have been an hon. Member, and undoubtedly much longer than that—for war criminals to be brought before appropriate international tribunals.

May I also ask the Foreign Secretary whether he is aware that I have tabled two written questions to him about the Nazi war criminal Aloïs Brunner—who was Eichmann's right-hand man; was responsible for many horrendous crimes against humanity, including the deportation and death of over 150,000 French jews; and is believed to be being harboured by Syria? Would he be a candidate for the attentions of the new International Criminal Court? If so, will the Government use their best endeavours to ensure that that monster is brought before the court?

Mr. Cook

There is already legal provision for those guilty of war crimes of a Nazi character during the second world war to be brought to justice. As the House well knows, Britain is at the forefront of insisting that those legal provisions should be honoured. I must be clear with the House—I do not want there to be any misunderstanding on this point—that, as a general principle, the International Criminal Court will not have a retrospective character. However, in future, it will be able to try those who commit crimes against humanity, war crimes or genocide. We hope that—by the very fact of its existence—the court will provide deterrence against such crimes, as tyrants will know not only that those whom they send out to commit such evil work may succumb to justice, but that they themselves may personally be held responsible.

Mr. Andrew Mackinlay (Thurrock)

May I add my congratulations on the achievement of getting so many parties' agreement to the treaty? Did I understand the Foreign Secretary to say that the international court or prosecutor would not be able to trigger an examination of genocide, for example, in jurisdictions which have their own capacity to try war criminals? If in the 21st century there were to be another—if I may use this example—My Lai, would the state whose army committed such a massacre be able to say, "It's not a matter for you, international court or prosecutor. Our country has our own competence to deal with the matter"? Such a system would be a cop-out and ensure that there would not be adequate prosecutions, as happened in the case of My Lai.

Mr. Cook

If my hon. Friend will forgive me, I shall tiptoe very delicately round the very undiplomatic example that he offers, but take up the issue that he raises. The principle on which the court has been created is that of complementarity—where there is effective legal remedy at a national level for the offence that is under investigation, the nation state will be expected to act on it. I think that that is an important requirement of the nations that sign up to the International Criminal Court. We should not allow signature to the court to allow nations to abdicate their own responsibility in holding their nationals to international and domestic law.

The purpose of the International Criminal Court is to provide a remedy for those states that cannot or—in the case of a collapse of law and order, such as occurred initially in Rwanda—are unable to bring their nationals to trial. Therefore, in cases in which nations cannot or—in the case of some other evil dictators—will not, the International Criminal Court provides a remedy. However, it is not a remedy which overrides the obligation of most states to execute their own legal procedures against those whom they have held to have committed a crime.

Mrs. Margaret Ewing (Moray)

May I echo the welcome for the agreement that has already been expressed by hon. Members and the gratitude to those who were involved in reaching an historical and very principled decision? I specifically welcome recognition of sexual violence and rape as a crime. Often, innocent children are born as a product of rape. Will the legislation contain specific provisions ensuring that there is representation for those children and for the orphans of war in any criminal proceedings that are brought? Those children are, above all, the innocent victims, and such representation would seem to be a vital part of looking to the future.

Mr. Cook

I welcome very much the support that the hon. Lady has offered both to the principle of the court and to that particular provision, which was strongly supported by Britain. I should not wish to prejudge a precise decision that may be made by the court, but I personally see no reason why—in those cases—orphans or children who are the products of sexual violence should not be legitimate candidates for reparation if that is ordered against those who are found guilty.

Mr. Kevin McNamara (Hull, North)

My right hon. Friend is to be congratulated—particularly because of the doom and gloom of a month or two ago about whether the conference would have any successful outcome. The conference has had a considerable outcome, for which the whole world should be grateful—despite the United States's distressing decision, which will alarm and puzzle its friends, not to sign up now.

Will my right hon. Friend inform the House precisely how he foresees the timetable? He has given some indication that the process will be somewhat long and drawn-out. However, how many states will have to ratify the agreement before it comes into operation? When does he expect legislation to be before the House? On the basis of his earlier comments, it seems likely that that will happen not in the next Session but probably in the Session after that. Is that correct? What does he think is the optimum date for establishment of the court?

Mr. Cook

My hon. Friend is quite right to contrast the very successful outcome of the Rome conference with what he described as the "doom and gloom" of expectations for the conference. There was doom and gloom about the outcome not only a few weeks ago but up until about last Thursday. The achievement is quite remarkable tribute to the way in which the conference was handled in its closing hours and to the determination of many national delegations, including the British one, that it would be a success.

The answer to my hon. Friend's question about how many countries need to ratify for the court to come into force is 60. It will take some time to get there—I do not wish to mislead the House on that point—but Britain will seek to ratify as quickly as we reasonably can. That will require, first, drawing up complex legislation, and, secondly, providing adequate time in the House for the legislation to be considered. Whether we can do that in the immediate future is something to which all hon. Members can apply their mind and come to their own conclusion. However, I can give the House an assurance that we will do it as quickly as we can. I personally would expect Britain to be among the first 60 to bring the court into being.

Mr. Michael Fabricant (Lichfield)

The principle of the court is welcomed by both sides of the House—the right hon. Gentleman has already pointed out that the court's purpose is not only to punish but to deter. However, he said that the court may have to apply to the Security Council in dealing with countries that are not signatories to the agreement. Will such decisions have to be unanimous or majority ones? If they have to be unanimous, does he think that that requirement will impede the court's practical work in deterring the Pol Pots and Saddam Husseins of this world?

Mr. Cook

I think that the answer to the hon. Gentleman's question is that it will be by a majority, subject, of course, to the fact that there are five countries—of which we are one—that have a veto over any resolution. In practice, there has not been a problem in the Security Council in getting international agreement to establish special tribunals to consider war crimes in Rwanda and in former Yugoslavia.

Until now, we have lacked the mechanism by which to act on those resolutions, which is why, on each occasion, we have had to invent an entirely new tribunal with its own procedures and institutions. Now, we will have the advantage that the International Criminal Court will be ready to act on any war crimes referred to it by the Security Council.

Mr. Tam Dalyell (Linlithgow)

May I congratulate my right hon. Friend the Foreign Secretary on his imagination in organising payment of travel expenses for some 50 of the poorest countries of the world? As a matter of curiosity, how much did we pay for that significant gesture? May I ask him about two further matters? First, will he reflect on whether the International Criminal Court would help in a case that has been raised with me by the Davidson family of Linlithgow—that of their cousin George Atkinson whose problems in Dubai have been outlined in four pages of this week's colour supplement of The Sunday Times? I use the case as an example of one in which an International Criminal Court could help.

Secondly, tomorrow night I have the good fortune to have the 15th Adjournment debate on Lockerbie. Perhaps my right hon. Friend could ask the Minister of State, Foreign and Commonwealth Office, my hon. Friend the Member for Manchester, Central (Mr. Lloyd), who is sitting next to him, to explain whether the International Criminal Court could help us out of the impasse on Pan Am flight 103 tomorrow night.

Mr. Cook

The answer to my hon. Friend's first question is that Britain contributed $100,000 to the UN trust fund set up for that purpose. I can tell the House that Britain was one of the biggest donors to that trust fund.

As my hon. Friend knows, I am familiar with the Atkinson case. I have been visited by his constituent who discussed it with me. We continue to be in close contact and to provide consular assistance and guidance. However, I am not clear whether anything in the Atkinson case would lend itself to an action before the International Criminal Court.

My hon. Friend will not be surprised to learn that I am aware that he has an Adjournment debate on Lockerbie tomorrow night. I hope that he will accept that it is a matter that is also of high priority within the Foreign Office. Apart from the retrospective element, the case of Lockerbie is unlikely to come within the scope of the court because we have firmly taken the view that the International Criminal Court should not cut across crimes for which there is already adequate international treaty provision, and there is very satisfactory provision in treaty for action against terrorism. Unfortunately, in the particular case of Lockerbie, it is not possible to enforce those mechanisms because Libya flatly refuses to extradite the two people who ought to be brought to trial.

Mr. David Heath (Somerton and Frome)

May I whole-heartedly congratulate the right hon. Gentleman on his statement? May I press him a little further on the seven-year immunity? What triggers that time period? Is it the date of the crime or the date of the intention to prosecute? Which state claims the immunity? Is it the state in which the crime was committed, or the state whose nationals are accused of committing the crime?

Mr. Cook

My understanding is that the seven-year limit starts running from the point of accession to the International Criminal Court—in other words, when 60 countries have ratified it, any one of them could claim a seven-year period of exemption from any war crime, not a specific war crime. Of course, the exemption would lapse at the end of seven years, and the country concerned would fall fully within the scope of the court. It will be an exemption from prosecution in respect of its own nationals, wherever they might be; hence the concern of one other NATO ally—not the United States—to protect its service men by that provision. It is tightly drawn and limited. I shall not pretend to the House that we put forward that concession or that we would have wished to see it as part of a negotiating position, but it does not strike at the heart of the court and was well worth agreeing to in order to get aboard a number of countries that would not otherwise have supported it.

Ms Jenny Jones (Wolverhampton, South-West)

I know that the Council of Europe made representations to the negotiating body that war crimes against women and children should be given particular recognition. That was done because of the evidence that came to light after the break-up of Yugoslavia. My right hon. Friend has already said that rape will now come under the jurisdiction of the International Criminal Court. Can he also confirm that women and children forced into prostitution and trafficked for that purpose will also come under the jurisdiction of the ICC?

Mr. Cook

I am very happy to say to my hon. Friend that enslavement is one of the crimes against humanity that come explicitly under the remit of the International Criminal Court, so enforced prostitution of the kind to which my hon. Friend refers will be prosecutable before the International Criminal Court as a war crime or a crime against humanity.

Mr. Deputy Speaker (Sir Alan Haselhurst)

Thank you very much.